FEDERAL ELECTION COMMISSION

Washington, DC 20463

MEMORANDUM

TO:

FROM:

DATE:

SUBJECT:

The Commission 

Office of the Commission Secretary 

July 19, 2022

AO 2022-15 (Rouda for Congress) NRCC Comment

The following is a comment from NRCC on AO 2022-15 (Rouda for Congress).

Attachment 
July 18, 2022 

Federal Election Commission 

1050 First Street, NE 

Washington, DC 20463 

Re: Comment on Advisory Opinion Request 2022-15 (Harley Rouda for Congress) 

Dear Commissioners, 

This comment on Advisory Opinion Request 2022-15 (Harley Rouda for Congress) is submitted 

by the undersigned counsel on behalf of the NRCC. The NRCC strongly supports Mr. Rouda’s 

request and urges the Commission to affirm that his campaign committee may “reinstate the 

loans that Mr. Rouda previously made to the Committee and repay those loans with Committee 

funds either currently on hand or raised to retire the reinstated debt.” Advisory Opinion Request 

at 2. This result is compelled by the Supreme Court’s decision in FEC v. Ted Cruz for Senate, 

and we note the Commission has already applied Cruz in a recent audit matter. 

In fact, the NRCC submitted its own advisory opinion request on behalf of its Members in the 

hopes of receiving guidance from the Commission on this important question, but that request 

was rejected by the Office of General Counsel (“OGC”) as “incomplete or otherwise not 

qualified.” We noted in our request that the Commission has issued several advisory opinions to 

representative entities, usually party committees, presenting questions on behalf of their 

members, and the Commission issued another such advisory opinion just last month.1

 Attorneys 

with OGC, however, took the position that the NRCC’s request did not include enough facts and 

that somehow made it distinguishable from these past advisory opinions. We are unsure exactly 

how OGC came to this conclusion, and found their explanation lacking, but with OGC unwilling 

to advance our request, we withdrew it.2

Notwithstanding our disagreement with OGC’s assessment, OGC’s attorneys remained helpful 

and suggested we could file a comment in this matter. Accordingly, we submit this comment 

1 See, e.g., Advisory Opinion 2022-08 (NRCC) (issuing advisory opinion to NRCC regarding contribution limits 

applicable to NRCC’s Members running in certain New York primary elections); Advisory Opinion 2021-03 (NRSC 

and NRCC) (issuing advisory opinion to NRSC and NRCC regarding Members’ use of campaign funds to pay for 

personal security personnel); Advisory Opinion 2017-17 (Sergeant at Arms Irving) (issuing advisory opinion to 

House Sergeant at Arms regarding Members’ use of campaign funds to pay for residential security systems); 

Advisory Opinion 2006-24 (NRSC, DSCC, Republican State Committee of Pennsylvania) (issuing advisory opinion 

to party committees regarding federal candidate’s recount funds). 

2 11 C.F.R. § 112.1(d) purports to authorize OGC to exercise the Commission’s authority to determine the 

sufficiency of advisory opinion requests and appears to contravene 52 U.S.C. § 30106(c). In 1980, the 

Commission’s sole stated basis for granting the Commission’s authority to OGC was that it “reflect[ed] the 

Commission’s current practice.” 45 Fed. Reg. 15,089 (March 7, 1980) (“Subsection (d) reflects the Commission’s 

current practice of reviewing requests for sufficiency.”). 
which incorporates the NRCC’s withdrawn advisory opinion request as we believe it should be 

before the Commission as it considers Mr. Rouda’s request. 

Sincerely, 

 Jessica F. Johnson Erin Clark 

Holtzman Vogel Baran General Counsel 

 Torchinsky & Josefiak PLLC NRCC 

2300 N Street NW, Suite 643 

Washington, DC 20037 

Counsel to NRCC 
Page 1 of 3

June 8, 2022 

VIA EMAIL 

Federal Election Commission 

1050 First Street, NE 

Washington, DC 20463 

Re: Request for Advisory Opinion 

Dear Commissioners: 

The National Republican Congressional Committee (“NRCC”), through the undersigned 

counsel, submits this request for an advisory opinion pursuant to 52 U.S.C. § 30108 of the 

Federal Election Campaign Act of 1971, as amended (the “Act”). The NRCC requests the 

Commission’s confirmation that officeholders and candidates who are similarly situated to 

Senator Cruz may be repaid by their campaign committees for those portions of candidate 

personal loans that were previously converted to candidate contributions pursuant to 11 C.F.R. § 

116.11(c)(2), along with guidance on proper reporting of such transactions. 

The NRCC is classified as a national political party committee under the Act. The NRCC is 

comprised of sitting Republican Members of the U.S. House of Representatives and includes all 

incumbent Republican House Members. As part of its primary function to aid the election of 

candidates affiliated with the Republican Party, the NRCC provides guidance to incumbent 

federal candidates, as well as to challengers and to candidates for open seats. The NRCC 

submits this request on behalf of its Members currently serving in federal office.1

Legal Background 

On May 16, 2022, the U.S. Supreme Court invalidated Section 304 of the Bipartisan Campaign 

Reform Act of 2002, see 52 U.S.C. § 30116(j), which provided that “a candidate who loans 

money to his campaign may not be repaid more than $250,000 of such loans from contributions 

made to the campaign after the date of the election.” FEC v. Ted Cruz For Senate, 596 U.S. 

____ (2022), Slip Op. at 2. The Court also invalidated the Commission’s implementing 

regulations at 11 C.F.R. §§ 116.11 and 116.12. Id. at 9 (“if Section 304 is invalid and 

unenforceable ... the agency’s 20-day rule is as well”). 

1 The Commission has previously issued advisory opinions to requestors submitting on behalf of Members of 

Congress and/or federal candidates. See, e.g., Advisory Opinion 2021-03 (NRSC and NRCC) (issuing advisory 

opinion applicable to Members’ use of campaign funds to pay for personal security personnel); Advisory Opinion 

2017-17 (Sergeant at Arms Irving) (issuing advisory opinion applicable to Members’ use of campaign funds to pay 

for residential security systems); Advisory Opinion 2006-24 (NRSC, DSCC, Republican State Committee of 

Pennsylvania) (issuing advisory opinion applicable to federal candidate recount funds).
Page 2 of 3

The Court’s decision explains that “[b]efore election day, Cruz loaned $260,000 to ... Ted Cruz 

for Senate (Committee). At the end of election day, however, the Committee was in the red by 

approximately $340,000. It eventually began repaying Cruz’s loans, but by that time the 20-day 

post-election window for repaying amounts over $250,000 had closed. See 11 CFR §§ 

116.11(c)(1), (2). The Committee accordingly repaid Cruz only $250,000, leaving $10,000 of 

his personal loans unpaid.” Id. at 3. The three-judge panel decision indicated that “[t]he $10,000 

balance of those loans was subsequently deemed a campaign contribution from Senator Cruz.” 

Ted Cruz for Senate v. FEC, 542 F. Supp. 3d 1, 6 (D.D.C. 2021). 

Question Presented 

As a result of the Supreme Court’s decision, Senator Cruz’s principal campaign committee, Ted 

Cruz For Senate, may now repay Senator Cruz the $10,000 portion of the candidate personal 

loan that was converted to a candidate contribution pursuant to Commission regulations. The 

question presented now is:

Member A is an incumbent Member of the U.S. House of Representatives and a candidate for reelection to the U.S. House in 2022. In a past election, Member A made a personal loan to his 

principal campaign committee in an amount greater than $250,000. At the close of the 20-day 

repayment period specified in 11 C.F.R. § 116.11(c)(2), Member A’s personal loan to his 

campaign had not been fully repaid and Member’s campaign lacked sufficient pre-election funds 

to fully repay Member A’s loan. Member A’s campaign was forced to “treat the portion of the 

aggregate outstanding balance of the personal loans that exceed[ed] $250,000 minus the amount 

of cash on hand as of the day after the election used to repay the loan as a contribution by the 

candidate.” Member A’s next-filed disclosure report reflected that the committee carried 

forward a permissible portion of the candidate’s personal loan, but the “excess loan amount” 

was converted to a personal contribution from the candidate. 

May Member A’s campaign committee reclassify the “excess loan amount” that was previously 

converted to a personal contribution from the candidate as a candidate personal loan and repay 

Member A for that loan from campaign funds either existing as cash on hand now or raised in 

the future? 

Analysis and Reporting Proposal 

The Commission should confirm that the campaign committees of candidates who are similarly 

situated to Senator Cruz may also repay candidate personal loans that were previously converted 

to candidate contributions pursuant to 52 U.S.C. § 30116(j) and 11 C.F.R. § 116.11(c)(2).2

 

There is no basis for the Commission to prevent such repayments, and to the greatest extent 

possible, the Commission should endeavor to provide relief to persons who were subjected to 

unconstitutional restrictions that have been invalidated. See generally Harper v. Va. Dep’t of 

2 Requestor notes that the issue of the application of the Supreme Court’s decision to an officeholder/candidate other 

than Senator Cruz arose during the Commission’s consideration of the Proposed Final Audit Report on Mike Braun 

for Indiana (A19-02) on June 8, 2022. Both the Commission’s discussion and the agenda documents indicated there 

was no dispute that the Court’s decision applies beyond Senator Cruz, and the approved Proposed Final Audit 

Report in fact applied the Cruz decision to the audited committee. 
Page 3 of 3

Taxation, 509 U.S. 86, 94-102 (1993) (discussing “general rule of retrospective effect for the 

constitutional decisions of this Court”). 

The Requestor proposes that campaign committees that make the determination to repay 

candidate personal loans that were converted to candidate contributions pursuant to 52 U.S.C. § 

30116(j) and 11 C.F.R. § 116.11(c)(2) may reclassify those transactions as loans and include a 

new entry (or entries) on Schedule C (Loans) along with an explanatory note or Form 99 filing 

explaining that a certain candidate loan that was converted to a contribution has been reclassified 

as a loan. This explanatory note or Form 99 filing would include the following details: (1) date 

of original candidate loan; (2) date and amount of “excess loan” conversion to candidate 

contribution; (3) reference to new entry (or entries) on Schedule C (Loans); and (4) statement 

that previously converted loan has been reclassified pursuant to FEC v. Ted Cruz For Senate. 

The Commission has previously allowed campaign committees to reclassify candidate personal 

contributions as candidate loans in situations where those loans were mis-reported as 

contributions. See, e.g., Advisory Opinions 2007-07 (Craig for U.S. Congress), 2006-37 (Kissin 

For Congress), Advisory Opinion 1997-21 (Firebaugh). In those matters, the Commission 

required the committees to amend the initial report disclosing the misreported contribution at 

issue as well as “all subsequent reports to reflect the debts owed by the Committee to the 

candidate,” on the grounds that a reporting error had occurred. Advisory Opinion 2007-07 at 3. 

In the present circumstances, however, no reporting errors occurred, and committees should not 

be required to amend reports that were properly filed. To require extensive reporting 

amendments would simply compound the error that the Court’s decision corrects. 

Accordingly, Requestor asks the Commission to confirm: (i) that campaign committees may 

repay candidate personal loans that were previously converted to candidate contributions, in 

accordance with FEC v. Ted Cruz For Senate; and (ii) the permissibility of the reporting 

proposal above. If the Commission deems the Requestor’s reporting proposal inadequate, 

Requestor seeks Commission guidance on a proper and acceptable reporting method. 

Sincerely, 

 Jessica F. Johnson Erin Clark 

Holtzman Vogel Baran General Counsel 

 Torchinsky & Josefiak PLLC NRCC 

2300 N Street NW, Suite 643 

Washington, DC 20037 

Counsel to NRCC 
From: Jessica Furst Johnson < > 

Date: Friday, June 24, 2022 at 10:35 AM 

To: Danita Alberico < >, Jessica Selinkoff < > 

Cc: Erin Clark < > 

Subject: Re: Contact info re: NRCC Advisory Opinion Request

 

Ms. Alberico and Ms. Selinkoff: 

 

Thank you for reaching out on Tuesday morning regarding the NRCC’s recently submitted AOR. After 

giving our conversation more thought and discussing the matter with Erin Clark, NRCC General Counsel, 

we believe the request submitted by the NRCC is consistent with the Commission’s approach in past 

requests, and would respectfully request that the Commission consider it as it currently stands. As the 

request notes, “The NRCC submits this request on behalf of its Members currently serving in federal 

office.” Just yesterday, the Commissioners unanimously approved AO 2022-08, Draft A, which also was 

submitted by the NRCC on behalf of its members. The requestor asked whether its members who were 

candidates in certain elections could raise funds under a separate contribution limit. The Commission 

answered the question, and there was no discussion at the table suggesting that any Commissioner was 

concerned that the request was improper. As footnote 1 in AO 2022-08 indicates, this approach is 

consistent with AO 2021-03, which in turn was consistent with 2017-17 and 2006-24.

 

The Commission responded to the request in 2022-08 without being specifically informed which 

members would potentially be engaging in the proposed activity. Rather, it was enough for the 

Commission to know that its response would apply to any NRCC member running in the specific 

elections noted in the request. And as Commissioner Weintraub mentioned yesterday morning, the 

response also applies to any other candidate running in those same elections.

 

Regarding the concern you expressed with respect to providing advice on how to report the 

loan/contribution transactions, we note that AO 2022-08 includes reporting advice for the NRCC’s 

members at footnote 37: “Contributions received for the June election do not have to be aggregated 

with contributions received for the August election, but remain subject to the limits of 52 U.S.C. § 

30116. In addition, any unused contributions lawfully made for the June election do not have to be 

redesignated by the contributors for the August election. See Advisory Opinion 2006-26 (Texans for 

Henry Bonilla) at 4; Advisory Opinion 1997-37 (Brady for Congress Committee) at 3; Advisory Opinion 

1996-36 (Frost et al.) at 5.” Thus, we don’t believe that details of a specific loan are required in order to 

answer the reporting aspect of the question at hand, and we’re hopeful the facts as provided are 

sufficient to provide the basis for such guidance.

 

Again, the Commission provided this advice without knowing anything about any members’ past 

activities or whether aggregation or redesignation was even an issue for any of the members in these 

elections. The same approach should apply here. Just as specific details about past fundraising activities 

by specific members was not necessary to 2022-08, specific details about past loans converted to 

personal contributions should not be needed for this request. For purposes of providing a response to 

the NRCC’s members, all that matters is that members converted ‘excess loan amounts’ to personal 

contributions pursuant to the now -invalidated regulation, and now we seek guidance on how to 

proceed in light the Cruz decision.